EXHIBIT
10.2


 




 





CONTRIBUTION
AGREEMENT


 


By
and Among


 


KSP
INVESTORS A L.P.,


 


KSP
INVESTORS B L.P.,


 


KSP
INVESTORS C L.P.,


 


THE
INDIVIDUALS NAMED ON SCHEDULE I HERETO,


 


TIMOTHY J.
CASEY,


 


JAMES J.
DOWLING,


 


BRIAN P.
FRIEDMAN,


 


EW
TRANSPORTATION LLC,


 


K-SEA GP
HOLDINGS LP


 


and


 


EW MERGERCO
LLC


 


 


Dated
as of [Closing Date], 2008




 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  3

  
	
   

  	
   

  
	
  ARTICLE II CONTRIBUTION AND
  DISTRIBUTION TRANSACTIONS

  	
  4

  
	
  Section 2.1

  	
  Merger of
  KSP GP and KSP GP of GP

  	
  4

  
	
  Section 2.2

  	
  Contribution
  of Interest in KSP GP by the Contributing Parties

  	
  4

  
	
  Section 2.3

  	
  EW LLC
  Subsidiary Transactions

  	
  4

  
	
  Section 2.4

  	
  Contribution
  of Interests in EW LLC by the Contributing Parties

  	
  4

  
	
  Section 2.5

  	
  Distribution
  of Common Units by C LP

  	
  5

  
	
  Section 2.6

  	
  Public Cash
  Contribution

  	
  5

  
	
  Section 2.7

  	
  Payment of Transaction Expenses by Holdings

  	
  5

  
	
  Section 2.8

  	
  Reimbursement
  for MLP Distribution

  	
  5

  
	
  Section 2.9

  	
  Issuance of
  New Certificates

  	
  5

  
	
  Section 2.10

  	
  Certificate
  Legend

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND
  WARRANTIES

  	
  6

  
	
  Section 3.1

  	
  Representations
  and Warranties of the Investors

  	
  6

  
	
  Section 3.2

  	
  Representations
  and Warranties of the Contributing Parties

  	
  6

  
	
  Section 3.3

  	
  Representations
  and Warranties of Casey, Dowling and Friedman

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV FURTHER ASSURANCES; COVENANTS

  	
  8

  
	
  Section 4.1

  	
  Further
  Assurances

  	
  8

  
	
  Section 4.2

  	
  Covenants by
  Casey, Dowling and Friedman

  	
  9

  
	
   

  	
   

  
	
  ARTICLE V INDEMNIFICATION

  	
  9

  
	
  Section 5.1

  	
  Indemnification
  by the Contributing Parties

  	
  9

  
	
  Section 5.2

  	
  Indemnification
  by Holdings

  	
  9

  
	
  Section 5.3

  	
  Indemnification
  Procedure

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI MISCELLANEOUS

  	
  11

  
	
  Section 6.1

  	
  Order of
  Completion of Transactions

  	
  11

  
	
  Section 6.2

  	
  Costs

  	
  11

  
	
  Section 6.3

  	
  Headings;
  References; Interpretation

  	
  11

  
	
  Section 6.4

  	
  Successors
  and Assigns

  	
  12

  
	
  Section 6.5

  	
  No Third
  Party Rights

  	
  12

  
	
  Section 6.6

  	
  Counterparts

  	
  12

  
	
  Section 6.7

  	
  Governing
  Law

  	
  12

  
	
  Section 6.8

  	
  Severability

  	
  12

  
	
  Section 6.9

  	
  Amendment or
  Modification

  	
  12

  
	
  Section 6.10

  	
  Integration

  	
  12

  
	
  Section 6.11

  	
  Deed; Bill
  of Sale; Assignment

  	
  12

  



 


i

















 


CONTRIBUTION
AGREEMENT


 


This
Contribution Agreement, dated as of
[             ],
2008 (this “Contribution Agreement”), is by and among KSP Investors A
L.P., a Delaware limited partnership (“A LP”), KSP Investors B L.P., a
Delaware limited partnership (“B LP”), KSP Investors C L.P., a Delaware
limited partnership (“C LP” and, together with A LP and B LP, the “Investors”),
the individuals listed on Schedule I hereto (collectively, the “Executives”
and, together with the Investors, the “Contributing Parties”), Timothy
J. Casey (“Casey”),  James J.
Dowling (“Dowling”),  Brian P.
Friedman (“Friedman”),  EW
Transportation LLC, a Delaware limited liability company (“EW LLC”),
K-Sea GP Holdings LP, a Delaware limited partnership (“Holdings”), and
EW MergerCo LLC, a Delaware limited liability company and a wholly owned
subsidiary of Holdings (“MergerCo”). 
The above-named entities are sometimes referred to in this Contribution
Agreement each as a “Party” and collectively as the “Parties.”
Capitalized terms used herein shall have the meanings assigned to such terms in
Section 1.1.


 


W I T N E S S
E T H:


 


WHEREAS, the
Contributing Parties, directly and indirectly, own certain interests in K-Sea
Transportation Partners L.P., a Delaware limited partnership (the “MLP”),
consisting of:


 


a.             a 100% interest in
K-Sea General Partner GP LLC, a Delaware limited liability company and the
general partner of K-Sea General Partner L.P. (“KSP GP of GP”), a
Delaware limited partnership and the general partner of the MLP (“KSP GP”),
and a 99.99% limited partner interest in KSP GP, which owns all of the 1.5%
general partner interest and 100% of the incentive distribution rights in the
MLP;


 


b.             (i) 2,082,500
common units representing limited partner interests in the MLP (“KSP Common
Units”) and (ii) 900,682 subordinated units representing limited
partner interests in the MLP (“KSP Subordinated Units”) indirectly owned
through the Contributing Parties’ 100% membership interest in EW LLC;


 


c.             727,273 KSP
Subordinated Units indirectly owned through EW Holding Corp., a Delaware
corporation and a wholly owned subsidiary of EW LLC (“EWH Corp”);


 


d.             454,545 KSP
Subordinated Units indirectly owned through EW Transportation Corp., a Delaware
corporation and a wholly owned subsidiary of EWH Corp (“EWT Corp”);


 


WHEREAS, the
Contributing Parties desire to transfer the economic benefits of their existing
ownership interests in KSP GP and the MLP to Holdings in order to
facilitate the Offering (as defined below) and promote the long-term growth
opportunities of the Parties;


 


WHEREAS, in
order to accomplish the objectives and purposes in the preceding recital, each
of the following actions has been taken prior to the date hereof:


 


1

















 


1.             Timothy
J. Casey (“Casey”), James J. Dowling and Brian P. Friedman have formed
K-Sea GP LLC (the “General Partner”) pursuant to the terms of the
Delaware LLC Act and contributed $1,000 to the General Partner in exchange for
all of the membership interests in the General Partner.


 


2.             The
General Partner and Casey have formed Holdings pursuant to the terms of the
Delaware LP Act and the General Partner received a non-economic general partner
interest in Holdings and Casey contributed $1,000 to Holdings in exchange for a
100% limited partner interest in Holdings.


 


3.             Holdings
has formed MergerCo pursuant to the Delaware LLC Act and contributed $1,000 to
MergerCo in exchange for all of the membership interests in MergerCo.


 


WHEREAS, in
connection with the closing of the Offering, each of the following shall occur
as more fully set forth in Article II:


 


1.             KSP
GP will merge with and into KSP GP of GP (with the surviving entity of such
merger being referred to herein as the “Consolidated GP”).


 


2.             The
Contributing Parties will contribute 100% of their respective interests in the
Consolidated GP to Holdings in exchange for
                          
Common Units, and Casey’s limited partner interest in Holdings will be redeemed
for $1,000.


 


3.             EWT
Corp will merge with and into EWH Corp, and EWH Corp will merge with and into
EW LLC.


 


4.             MergerCo
will merge with and into EW LLC, whereby the Contributing Parties interests in
EW LLC will be converted into
                        
Common Units.


 


5.             C
LP will distribute the Common Units that it owns to its investors.


 


6.             The
public, through the Underwriters, will purchase from certain of the
Contributing Parties named in the Registration Statement (the “Selling
Unitholders”) for
$                          
in cash less the Underwriters’ discounts and commissions of
$                          
[4,826,000] Common Units, representing a [32.2]% limited partner interest in
Holdings.


 


7.                                       The
public, through the Underwriters, will contribute
$                  
in cash less the Underwriters’ discounts and commissions of
$              
to Holdings in exchange for [1,424,000] Common Units, representing a [9.5]%
limited partner interest in Holdings.


 


8.             Holdings
will (a) pay Offering and related transaction expenses of approximately
$       million (exclusive of the Underwriters’
discounts and commissions), (b) use $22.7 million of the net proceeds of
the Offering to fund the retirement of the Assumed EW Liabilities (as defined
below), (c) use $     million to repay in full the
loan from EW LLC to Holdings referred to in Section 2.7(a) and (d) retain
the balance of the net proceeds of the Offering (exclusive of the proceeds to
the Selling Unitholders described above) for general partnership purposes.


 


2

















 


NOW,
THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, the parties hereto agree as
follows:


 


ARTICLE I


DEFINITIONS


 


The terms set
forth below in this Article I shall have the meanings ascribed to them
below or in the part of this Contribution Agreement referred to below:


 


“Assumed EW
Liabilities” means $15.5 million of EW LLC’s debt and $7.2 million of federal
and state income tax liabilities assumed by operation of law in the mergers
effected in accordance with Section 2.2.


 


“Business
Day” means any day other than a Saturday, a Sunday or any other day when
banks are not open for business generally in the State of Delaware.


 


“Commission”
means the U.S. Securities and Exchange Commission.


 


“Common Units”
means the common units representing limited partner interests in Holdings.


 


“Closing”
means the closing of the transactions contemplated pursuant to this
Contribution Agreement.


 


“Closing
Date” means the date on which the Offering is consummated (ignoring for
this purpose, the option granted by the Contributing Parties to the
Underwriters to purchase up to 937,500 additional Common Units as provided in
the Underwriting Agreement).


 


“Delaware
LLC Act” means the Limited Liability Company Act of the State of Delaware,
as amended and any successor to such act.


 


“Delaware
LP Act” means the Delaware Revised Uniform Limited Partnership Act, as
amended and any successor to such act.


 


“First
Delivery Date” has the same meaning as given to such term in the Underwriting
Agreement.


 


“Governmental
Authority” means (i) the United States of America, (ii) any
state, province, county, municipality or other governmental subdivision within
the United States of America, and (iii) any court or any governmental
department, commission, board, bureau, agency or other instrumentality of the
United States of America, or of any state, province, county, municipality or
other governmental subdivision within the United States of America.


 


“Offering”
means the initial public offering of the Common Units contemplated by the
Registration Statement.


 


“Person”
means an individual, corporation, partnership (limited or general), limited
liability company, trust, joint stock company, Governmental Authority,
unincorporated association or other legal entity.


 


3

















 


“Registration
Statement” means the Registration Statement on Form S-1 (Registration No. 333-149541),
as amended, initially filed with the Commission on March 5, 2008.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Underwriters”
means those underwriters listed in the Underwriting Agreement (the “Underwriting
Agreement”) between Lehman Brothers Inc. and Citigroup Global Markets Inc.,
as representatives of the Underwriters, the General Partner, Holdings and the
Selling Unitholders dated as of
                ,
2008.


 


ARTICLE II


CONTRIBUTION AND
DISTRIBUTION TRANSACTIONS


 


Section 2.1             Merger of KSP GP and KSP GP of GP.
KSP GP shall merge with and into KSP GP of GP, with KSP GP of GP being the
surviving entity (hereinafter being referred to herein as the “Consolidated
GP”), pursuant to the agreement and plan of merger attached hereto as Exhibit 2.1.


 


Section 2.2             Contribution of
Interest in KSP GP by the Contributing Parties.


 


(a)           The
Contributing Parties hereby grant, contribute, bargain, assign, transfer, set
over and deliver to Holdings, its successors and assigns, for its and their own
use forever, a 100% membership interest in the Consolidated GP (the “Transferred
MLP GP Interest”, and together with the limited partner interests in the
MLP owned by EW LLC immediately following the effective time of the EW LLC
Merger, the “Transferred Assets”) in exchange for
                
Common Units, representing a       % limited
partner interest in Holdings.


 


(b)           Holdings
shall redeem the limited partner interests issued to Casey in connection with
the formation of Holdings for $1,000 in cash.


 


Section 2.3             EW LLC Subsidiary
Transactions.


 


(a)           EWT
Corp shall merge with and into EWH Corp, with EWH Corp being the surviving
entity, pursuant to the agreement and plan of merger attached hereto as Exhibit 2.3(a).


 


(b)           EWH
Corp shall merge with and into EW LLC, with EW LLC being the surviving entity,
pursuant to the agreement and plan of merger attached hereto as Exhibit 2.3(b).


 


Section 2.4             Contribution
of Interests in EW LLC by the Contributing Parties.


 


(a)           MergerCo
shall merge with and into EW LLC, with EW LLC being the surviving entity
(the “EW LLC Merger”), pursuant to the agreement and plan of merger
attached hereto as Exhibit 2.4(a)(the “EW LLC Merger Agreement”).  As a result of this merger, EW LLC will
become a wholly owned subsidiary of Holdings.


 


4

















 


(b)           As
more fully described in the EW LLC Merger Agreement, in consideration for the
merger described in Section 2.4(a) above, Holdings will issue to the
Contributing Parties
                        
Common Units, representing a     % limited partner interest
in Holdings.


 


Section 2.5             Distribution
of Common Units by C LP. C LP shall distribute the Common Units
received by it in consideration for the transactions described in Sections 2.2
and 2.4.


 


Section 2.6             Public Cash
Contribution.


 


(a)           The Parties
acknowledge receipt of payment by the public, through the Underwriters, to the
Selling Unitholders of
$                
in cash,
($                
after the Underwriters’ discounts and commissions of
$              )
in exchange for [4,826,000] Common Units representing a [32.2]% limited partner
interest in Holdings.  Delivery of the
Common Units to be delivered to the Underwriters on the First Delivery Date
shall be completed by the issuance and delivery in [eight] consecutive
deliveries, each equal to [12.5%] of the total number of Firm Units (as such
term is defined in the Underwriting Agreement)


 


(b)           The Parties
acknowledge a capital contribution by the public, through the Underwriters, to
Holdings of
$                
in cash, ($                
after the Underwriters’ discounts and commissions of
$              )
in exchange for [1,424,000] Common Units representing a [9.5]% limited partner
interest in Holdings.


 


(c)           Delivery of the
Common Units to be delivered to the Underwriters on the First Delivery Date
shall be completed by the issuance and delivery in [eight] consecutive
deliveries (each, a “Delivery”), each equal to [12.5%] of the total
number of Firm Units (as such term is defined in the Underwriting Agreement)
set forth opposite each Underwriter’s name on Schedule 1 to the Underwriting
Agreement; provided, however, that the Common Units
sold by B LP pursuant to the Underwriting Agreement shall be sold in the first
Delivery and any remaining Common Units to be sold by B LP pursuant to the
Underwriting Agreement shall be sold in the second Delivery.


 


Section 2.7             Payment of
Transaction Expenses by Holdings. The Parties acknowledge that in
connection with the Offering, EW LLC has loaned Holdings
$                        
to pay for certain expenses of the Offering or related thereto.  In addition, the Parties acknowledge (a) the
payment by Holdings, in connection with the transactions contemplated hereby,
of estimated transaction expenses in the amount of approximately
$       million (exclusive of the Underwriters’
discounts and commissions), (b) the use by Holdings of $22.7 million to
retire the Assumed EW Liabilities, (c) the use by Holdings of
$                      
to repay in full the loan from EW LLC to Holdings referred to in the
immediately preceding sentence and (d) the retention of the balance of the
net proceeds of the Offering (exclusive of the proceeds to the Selling
Unitholders described in Section 2.6(b)) for general partnership purposes.


 


Section 2.8            Reimbursement for MLP Distribution. With respect
to the distributions paid by the MLP for the quarter ending [September 30],
2008 and received by (i) EW LLC relating to the 2,082,500 KSP Common Units
and the 2,082,500 KSP Subordinated Units to be owned by EW LLC after the merger
described in Section 2.4(a) (the “EW LLC Distribution”) and (ii) the
Consolidated GP relating to the 1.5% general partner interest and 100% of the
incentive distribution rights in the MLP to be owned by the Consolidated GP at
the Closing (the “Consolidated GP Distribution,” and together with the
EW LLC Distribution, the “Stub Period Distribution”), Holdings shall
promptly pay after receipt of the Stub Period Distribution to the Contributing
Parties pro rata based upon such Contributing Parties ownership interests in
KSP GP of GP and EW LLC an amount in cash equal to the Stub Period Distribution
multiplied by a fraction the numerator of which is the number of days in the
period from [July 1], 2008 to and including the Closing Date and the
denominator of which is [92].


 


Section 2.9             Issuance
of New Certificates. At the Closing, Holdings shall issue to each of the
Contributing Parties a certificate or certificates, which may be held in book
entry form, representing the respective number of Common Units to be issued to
such Contributing Parties pursuant to Sections 2.2 and 2.4 less any Common
Units sold by such Contributing Parties described in Section 2.6(b).  Each such certificate shall be registered in
the name of the Person or Persons specified by the recipient thereof to
Holdings in writing at least two Business Days prior to the Closing Date.


 


5

















 


Section 2.10           Certificate Legend.
The certificates evidencing the Common Units delivered pursuant to Section 2.9
shall bear a legend substantially in the form set forth below and containing
such other information as Holdings may deem necessary or appropriate:


 


THE HOLDER OF THIS SECURITY
ACKNOWLEDGES FOR THE BENEFIT OF THE PARTNERSHIP THAT THIS SECURITY MAY NOT
BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER
WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR
RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE
SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION
OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF THE
PARTNERSHIP UNDER THE LAWS OF THE STATE OF DELAWARE, (C) CAUSE THE
PARTNERSHIP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR
OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE
EXTENT NOT ALREADY SO TREATED OR TAXED), OR (D) CAUSE THE PARTNERSHIP OR
K-SEA TRANSPORTATION PARTNERS L.P. TO FAIL TO QUALIFY TO OWN/OPERATE VESSELS IN
THE U.S. COASTWISE TRADE DUE TO NOT MEETING THE CITIZENSHIP REQUIREMENTS OF THE
MARITIME LAWS.  K-SEA GP LLC, THE GENERAL
PARTNER OF THE PARTNERSHIP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE
TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH
RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP
BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY
FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT
PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED
INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS
SECURITY IS LISTED OR ADMITTED TO TRADING.


 


ARTICLE III


REPRESENTATIONS AND
WARRANTIES


 


Section 3.1             Representations
and Warranties of the Investors. Each of the Investors hereby represents
and warrants to Holdings as of the date of this Contribution Agreement that
such Investor has been duly organized and is validly existing in good standing
under the laws of the State of Delaware, with all requisite power and authority
necessary to own or hold each such Investor’s properties and conduct the
businesses in which each such Investor is engaged.


 


Section 3.2             Representations
and Warranties of the Contributing Parties. Each of the Contributing
Parties hereby represents and warrants to Holdings as follows as of the date of
this Contribution Agreement that:


 


(a)           Such
Contributing Party has all requisite power and authority necessary to execute
and deliver this Contribution Agreement and to consummate the transactions
contemplated hereby.


 


(b)           As
of the date of this Contribution Agreement, following the consummation of the
transactions described in Section 2.2, Holdings owns 100% of the issued
and outstanding member interests in Consolidated GP; such member interests
have been duly authorized and validly issued in accordance with the limited
liability company agreement of KSP GP of GP, as amended, restated,
supplemented or otherwise modified on or prior to the Closing Date or any
settlement date, and Holdings owns such member interests free and clear of all
liens, encumbrances, security interests, equities, charges or claims.


 


6














 


(c)           As of the date of this
Contribution Agreement, following the consummation of the transactions
described in Section 2.4, Holdings owns 100% of the issued and outstanding
member interests in EW LLC; such member interests have been duly
authorized and validly issued in accordance with the limited liability company
agreement of EW LLC, as amended, restated, supplemented or otherwise
modified on or prior to the Closing Date or any settlement date, and Holdings
owns such member interests free and clear of all liens, encumbrances, security
interests, equities, charges or claims.


 


(d)           As of the date of this
Contribution Agreement, following the consummation of the transactions
described in Section 2.3, EW LLC owns 2,082,500 KSP Common Units and
2,082,500 KSP Subordinated Units; such limited partner interests have been duly
authorized and validly issued in accordance with the agreement of limited
partnership of the MLP, as amended, restated, supplemented or otherwise
modified on or prior to the Closing Date or any settlement date, and EW LLC
owns such limited partner interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims.


 


(e)           All requisite corporate or
partnership action required to be taken by such Contributing Party or any of
their securityholders for the authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement has been validly taken.


 


(f)            None of the (i) execution,
delivery and performance of this Agreement by such Contributing Party, or (ii) consummation
of the transactions contemplated hereby by such Contributing Party (A) conflicts
or will conflict with or constitutes or will constitute a violation of the
governing documents of such Contributing Party, (B) conflicts or will
conflict with or constitutes or will constitute a breach or violation of, or a
default (or an event that, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which such Contributing
Party is a party or by which such Contributing Party or any of its respective
properties may be bound, (C) violates or will violate any statute, law or
regulation or any order, judgment, decree or injunction of any Governmental
Authority or body having jurisdiction over such Contributing Party, or any of
its respective properties or assets, or (D) results or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of such Contributing Party, which conflicts, breaches, violations,
defaults or liens, in the case of clauses (B) or (D), would, individually
or in the aggregate, have a material adverse effect on (i) the
transactions contemplated by this Agreement or (ii) the ownership and use
by Holdings of the Transferred Assets at or after the Closing (a “Material
Adverse  Effect”).


 


(g)           No permit, consent,
approval, authorization, order, registration, filing or qualification (a “Consent”)
of or with any Governmental Authority or body having jurisdiction over such
Contributing Party or any of its respective properties is required in
connection with (i) the execution, delivery and performance of this
Agreement by such Contributing Party, or (ii) the consummation by such
Contributing Party of the


 


7

















 


transactions contemplated by this Agreement,
except for such Consents that have been obtained.


 


Section 3.3             Representations
and Warranties of Casey, Dowling and Friedman. Each of Casey, Dowling and
Friedman hereby represents and warrants to Holdings as follows as of the date
of this Contribution Agreement that:


 


(a)           Such Party has all requisite
power and authority necessary to execute and deliver this Contribution
Agreement and to consummate the transactions contemplated hereby.


 


(b)           None of the (i) execution,
delivery and performance of this Agreement by such Party, or (ii) consummation
of the transactions contemplated hereby by such Party (A) conflicts or
will conflict with or constitutes or will constitute a breach or violation of,
or a default (or an event that, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which such Party is a
party or by which such Party or any of its respective properties may be bound, (B) violates
or will violate any statute, law or regulation or any order, judgment, decree
or injunction of any Governmental Authority or body having jurisdiction over
such Party, or any of its respective properties or assets, or (C) results
or will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of such Party, which conflicts, breaches,
violations, defaults or liens, in the case of clauses (A) or (C), would,
individually or in the aggregate, have a Material Adverse Effect.


 


(c)           No Consent of or with any
Governmental Authority or body having jurisdiction over such Party or any of
its respective properties is required in connection with (i) the
execution, delivery and performance of this Agreement by such Party, or (ii) the
consummation by such Party of the transactions contemplated by this Agreement,
except for such Consents that have been obtained.


 


ARTICLE IV


FURTHER ASSURANCES; COVENANTS


 


Section 4.1             Further
Assurances. From time to time after the Closing, and without
any further consideration, the Parties agree to execute, acknowledge and
deliver all such additional deeds, assignments, bills of sale, conveyances,
instruments, notices, releases, acquittances and other documents, and will do
all such other acts and things, all in accordance with applicable law, as may
be necessary or appropriate (a) more fully to assure that the applicable
Parties own all of the properties, rights, titles, interests, estates,
remedies, powers and privileges granted by this Contribution Agreement, or
which are intended to be so granted, or (b) more fully and effectively to
vest in the applicable Parties and their respective successors and assigns
beneficial and record title to the interests contributed and assigned by this
Contribution


 


8

















 


Agreement
or intended so to be and to more fully and effectively carry out the purposes
and intent of this Contribution Agreement.


 


Section 4.2             Covenants by
Casey, Dowling and Friedman. Each of Casey, Dowling and
Friedman hereby agree, for themselves and any successor member of the General
Partner to such Party, that (i) other than reimbursement of out-of pocket
expenses incurred in maintaining their membership interest in the General
Partner and in managing the General Partner, such Party (solely in his capacity
as a member of the General Partner) shall not receive any personal economic
benefit from his ownership of a membership interest in the General Partner and (ii) such
Party shall promptly deliver to Holdings any value received by such Party or
any Affiliate (as defined in the Amended and Restated Agreement of Limited
Partnership of Holdings) of such Party upon the sale by such Party of all or
any portion of his membership interest in the General Partner or the sale of
any assets of the General Partner to a third party in excess of such Party’s
capital contribution to the General Partner and reasonable out-of-pocket
expenses related to such sale.


 


ARTICLE V


INDEMNIFICATION


 


Section 5.1             Indemnification
by the Contributing Parties. Subject to the other
provisions of this Article V, each the Contributing Parties, jointly and
severally, shall indemnify, defend and hold harmless Holdings from and against
any losses, damages, liabilities, claims, demands, causes of action, judgments,
settlements, fines, penalties, costs and expenses (including, without limitation,
court costs and reasonable attorney’s fees and expert fees) of any and every
kind and character (“Losses”), insofar as such Losses arise out of or
are based upon:


 


(a)           the failure of any
Contributing Party to be the owner of the respective assets transferred to
Holdings pursuant to the terms of this Contribution Agreement as is necessary
for Holdings to continue to own all of the Transferred Assets and to derive the
benefits therefrom in accordance with the terms of such equity interests; and


 


(b)           the failure of any
Contributing Party to have at the Closing any consent or approval of a
Governmental Authority necessary to allow transfer by such Contributing Party
of any of the Transferred Assets.


 


Section 5.2             Indemnification
by Holdings. Holdings shall indemnify, defend and hold harmless
each of the other Parties from and against all Losses suffered or incurred by such
Party arising out of or relating to the Transferred Assets, except with respect
to matters for which Holdings is


 


9

















 


entitled
to indemnification therefor under Section 5.1.  In addition, Holdings shall indemnify, defend
and hold harmless each of Casey, Dowling and Friedman (and each successor
member of the General Partner to such Party) from and against all taxes, if
any, incurred by such Party in connection with any transfer referred to in Section 4.2.


 


Section 5.3             Indemnification
Procedure.


 


(a)           As used in this Section 5.3,
the term “Indemnifying Party” refers to the Contributing Parties, jointly and
severally, in the case of any indemnification obligation arising under Section 5.1,
and to Holdings, in the case of any indemnification obligation arising under Section 5.2;
and the term “Indemnified Party” refers to Holdings, in the case of any indemnification
obligation arising under Section 5.1, and to the Contributing Parties, in
the case of any indemnification obligation arising under Section 5.2.


 


(b)           The Indemnified Party agrees
that within a reasonable period of time after it becomes aware of facts giving
rise to a claim for indemnification under this Article V, it will provide
notice thereof in writing to the Indemnifying Party, specifying the nature of
and specific basis for such claim.


 


(c)           The Indemnifying Party shall
have the right to control, at its sole cost and expense, all aspects of the
defense of (and any counterclaims with respect to) any claims brought against
the Indemnified Party that are covered by the indemnification under this Article V,
including, without limitation, the selection of counsel, determination of
whether to appeal any decision of any Governmental Authority and the settling
of any such matter or any issues relating thereto; provided, however, that no
such settlement shall be entered into without the consent of the Indemnified
Party (which consent shall not be unreasonably withheld) unless it includes a
full release of the Indemnified Party from such matter or issues, as the case
may be.


 


(d)           The Indemnified Party agrees
to cooperate fully with the Indemnifying Party, with respect to (i) its
pursuit of insurance coverage or recoveries with respect to the claims covered
by the indemnification under this Article V and (ii) all aspects of
the defense of any claims covered by the indemnification under this Article V,
including, without limitation, the prompt furnishing to the Indemnifying Party
of any correspondence or other notice relating thereto that the Indemnified
Party may receive, permitting the name of the Indemnified Party to be utilized
in connection with such defense, the making available to the Indemnifying Party
of any files, records or other information of the Indemnified Party that the
Indemnifying Party considers relevant to such defense and the making available
to the Indemnifying Party of any employees of the Indemnified Party; provided,
however, that in connection therewith the Indemnifying Party agrees to use
reasonable efforts to minimize the impact thereof on the operations of the
Indemnified Party and further agrees to maintain the confidentiality of all
files, records, and other information furnished by the Indemnified Party
pursuant to this Section 5.3. In no event shall the obligation of the
Indemnified Party to cooperate with the Indemnifying Party as set forth in the
immediately preceding sentence be construed as imposing upon the Indemnified
Party an obligation to hire and pay for counsel in connection with the defense
of any claims covered by the indemnification set forth in this


 


10

















 


Article V provided, however, that the
Indemnified Party may, at its own option, cost and expense, hire and pay for
counsel in connection with any such defense. The Indemnifying Party agrees to
keep any such counsel hired by the Indemnified Party informed as to the status
of any such defense, but the Indemnifying Party shall have the right to retain
sole control over such defense.


 


(e)           The date on which written
notification of a claim for indemnification is received by the Indemnifying
Party shall determine whether such claim is timely made within the limitations
specified in Section 5.1. No claim for indemnification pursuant to Section 5.1(a) shall
be brought or made unless, prior to thirty (30) days after the actual knowledge
by the Indemnified Party of the Losses set forth in Section 5.1(a), the
Indemnified Party shall have delivered to the Indemnifying Party a good faith
written notice to the effect that the Indemnified Party has incurred Losses
entitled to be indemnified against under Section 5.1(a), which notice
specifies in reasonable detail the amount of such Losses and the nature and
basis of such claim.


 


ARTICLE VI


MISCELLANEOUS


 


Section 6.1             Order of
Completion of Transactions. The transactions provided
for in Article II of this Contribution Agreement shall be completed on the
Closing Date in the order set forth therein.


 


Section 6.2             Costs. Holdings
shall pay all expenses, fees and costs, including but not limited to, all
sales, use and similar taxes arising out of the contributions, conveyances and
deliveries to be made hereunder and shall pay all documentary, filing,
recording, transfer, deed, and conveyance taxes and fees required in connection
therewith. In addition, Holdings shall be responsible for all costs,
liabilities and expenses (including court costs and reasonable attorneys’ fees)
incurred in connection with the implementation of any conveyance or delivery
pursuant to the provisions of this Contribution Agreement.


 


Section 6.3             Headings;
References; Interpretation. All Article and Section headings
in this Contribution Agreement are for convenience only and shall not be deemed
to control or affect the meaning or construction of any of the provisions
hereof. The words “hereof,” “herein” and “hereunder” and words of similar
import, when used in this Contribution Agreement, shall refer to this
Contribution Agreement as a whole, including, without limitation, all Schedules
and Exhibits attached hereto, and not to any particular provision of this
Contribution Agreement. All personal pronouns used in this Contribution
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders, and the singular shall include the plural and vice versa.
The use herein of the word “including” following any general statement, term or
matter shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as “without
limitation”, “but not limited to”, or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of such
general statement, term or matter.


 


11

















 


Section 6.4             Successors and
Assigns. The Contribution Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.


 


Section 6.5             No Third Party
Rights. The provisions of this Contribution Agreement are intended to bind
the Parties as to each other and are not intended to and do not create rights
in any other person or confer upon any other person any benefits, rights or
remedies and no person is or is intended to be a third party beneficiary of any
of the provisions of this Contribution Agreement.


 


Section 6.6             Counterparts. This
Contribution Agreement may be executed in any number of counterparts, all of
which together shall constitute one agreement binding on the parties hereto.


 


Section 6.7             Governing Law. This
Contribution Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts made and to be
performed wholly within such state without giving effect to conflict of law
principles thereof.


 


Section 6.8             Severability. If any of the
provisions of this Contribution Agreement are held by any court of competent
jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter hereof, such contravention or
invalidity shall not invalidate the entire Contribution Agreement. Instead,
this Contribution Agreement shall be construed as if it did not contain the
particular provision or provisions held to be invalid and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the Parties as expressed in this Contribution Agreement at the
time of execution of this Contribution Agreement.


 


Section 6.9             Amendment or
Modification. This Contribution Agreement may be amended or
modified from time to time only by the written agreement of all the Parties.
Each such instrument shall be reduced to writing and shall be designated on its
face as an Amendment to this Contribution Agreement.


 


Section 6.10           Integration. This
Contribution Agreement and the instruments referenced herein supersede all
previous understandings or agreements among the Parties, whether oral or
written, with respect to their subject matter. This document and such instruments
contain the entire understanding of the Parties with respect to the subject
matter hereof and thereof. No understanding, representation, promise or
agreement, whether oral or written, is intended to be or shall be included in
or form part of this Contribution Agreement unless it is contained in a written
amendment hereto executed by the parties hereto after the date of this
Contribution Agreement.


 


Section 6.11           Deed; Bill of
Sale; Assignment. To the extent required and permitted by applicable
law, this Contribution Agreement shall also constitute a “deed,” “bill of sale”
or “assignment” of the assets and interests referenced herein.


 


 


12

















 


IN WITNESS WHEREOF, the
parties to this Contribution Agreement have caused it to be duly executed as of
the date first above written.


 


	
   

  	
  KSP INVESTORS A L.P.

  
	
   

  	
   

  
	
   

  	
  By:   PARK
  AVENUE TRANSPORTATION INC.,

  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
           By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
  KSP INVESTORS B L.P.

  
	
   

  	
   

  
	
   

  	
  By:   PARK
  AVENUE TRANSPORTATION INC.,

  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
           By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
  KSP INVESTORS C L.P.

  
	
   

  	
   

  
	
   

  	
  By:   PARK
  AVENUE TRANSPORTATION INC.,

  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
           By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
  THE INDIVIDUALS NAMED ON
  SCHEDULE I

  HERETO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:
  Attorney-in-Fact

  
					



 


Signature
Page to Contribution Agreement


 

















 


	
   

  	
  EW TRANSPORTATION LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  K-SEA GP HOLDINGS LP

  
	
   

  	
   

  
	
   

  	
  By:   K-SEA
  GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
            By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
  Timothy J. Casey

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  James J. Dowling

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Brian P. Friedman

  
				



 


Signature
Page to Contribution Agreement


 

















 


SCHEDULE I


 


Timothy
J. Casey


John
J. Nicola


Thomas
M. Sullivan


Richard
P. Falcinelli


Chris
Palo


Greg
Haslinsky


Terry
Gill


Richard
Pittner


Carl
Eklof


 


S-1

















 


Exhibit 2.1


 


Agreement and Plan of
Merger


between


KSP GP and KSP GP of GP


 


E-1

















 


Exhibit 2.3(a)


 


Agreement and Plan of
Merger


between


EWT Corp and EWH Corp


 


E-2

















 


Exhibit 2.3(b)


 


Agreement and Plan of
Merger


between


EWH Corp and EW LLC


 


E-3

















 


Exhibit 2.4(a)


 


Agreement and Plan of
Merger


between


MergerCo and EW LLC


 


E-4